G-7 
x 


BANCROFT 

LIBRARY 
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THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 


</ 


UNITED  STATES  OF  AMERICA. 


Department  of  the  Vmtu  Mm  %  puitavy  (Eommi^iou, 

AT    SAiKT    FKAJSTCISCO,    CALIFORNIA. 


THE     UNIT-ED     STATES 


T.     E.     HOOG    ET    AL. 


ARGUMENT  OF  MR.  EDMOND  L.  GOOLD,  AND  MR.  JOHN  W.  DWINELLE, 
FOR  THE  DEFENDANTS. 


EDMOND  L.  JGOOLD, 
JOHN  W.  DWINELLE, 

Of  Counsel. 


Towne  &  Bacon,  Printers. 


UP  EARY 


UNITED  STATES  OF  AMERICA. 


DEPARTMENT    OF    THE    PACIFIC  —  BEFORE    A    MILITARY 

COMMISSION. 


THE    UNITED    STATES 

against 
T.    E.    HOGG    ET    AL. 


ARGUMENT    OF    MR.    EDMOND    L.    GOOLD    AND    MR. 
JOHN  W.   DWINELLE   FOR  THE   DEFENDANTS. 

STATEMENT    OF   THE  CASE. 

THIS  Commission  was  detailed  by  Major  General 
McDowELL,  commanding  the  Department  of  the  Pacific, 
and  the  defendants  arraigned  before  it,  upon  the 
'  '  charge  of  a  violation  of  the  laws  and  usage  of  civilized 
"war,"  which  charge  ,  and  the  specification  accompany- 
ing it,  are  to  be  found  at  page  7,  of  this  argument. 
The  substantial  facts  are  briefly  these  :  On  the  tenth  r~//  -><> 
day  of  November,  1864,  the  defendants  were  arrested 
on  board  the  United  States  merchant  steamer  Salvador, 


x 


by  the  officers  of  the  United  States  war  steamer  Lan- 
caster. The  officers  of  the  war  steamer  Lancaster  had 
previous  knowledge  that  the  defendants  had  come  on 
board  the  Salvador,  in  the  port  of  Panama,  in  the  dis- 
guise of  passengers,  with  the  intent  to  rise  upon  the 
officers  and  crew  when  she  should  have  reached  the 
high  seas,  to  capture  her,  and  to  convert  her  into  a 
cruiser,  in  the  service  of  the  Government  of  the  so- 
called  Confederate  States.  The  officers  of  the  war 
steamer  Lancaster  permitted  the  defendants  to  go  to 
sea  peaceably,  on  the  Salvador,  but  when  the  high  seas 
were  attained,  arrested  them.  In  their  possession  were 
found  small  arms  adequate  and  proper  for  the  contem- 
plated rising  upon  the  officers  and  crew,  and  the  "Con- 
federate "  flag.  Also  the  following 

INS  TEUCTIONS. 

CONFEDERATE  STATES  OF  AMERICA,         ) 
[DUPLICATE.]  Navy  Department,  Richmond,  May  7th,  1864.    > 

Acting  Master  T.  E.  Hogg,  C.  S.  Navy,  Richmond,  Va.  : 

You  will  proceed  with  the  men  under  your  command  from  Wilmington,  by 
the  shortest  and  safest  route,  to  the  port  of  Panama.  And  at  that  port  you 
will  take  passage  on  board  either  the  Guatamala  or  San  Salvador,  the  two 
Federal  ocean  steamers  trading  between  Panama  and  Realejo.  After  reaching 
the  high  sea  you  will  consider  upon  and  devise  a  means  to  capture  the  vessel, 
in  the  name  of  the  Confederate  States,  and  effect  the  capture  without  fail. 
Your  conduct  towards  the  people  of  the  captured  vessel  will  be  guided  by  that 
humanity  which  ever  characterizes  the  conduct  of  our  Naval  officers. 

Having  secured  the  steamer,  organized  your  crew,  and  hoisted  the  flag  of 
the  Confederate  States,  you  will  adopt  prompt  measures  to  arm  your  vessel  and 
proceed  to  cruise  against  the  enemy  in  the  Pacific. 

If  practicable,  you  will  report  to,  or  communicate  with,  Captain  Semmes,  of 
the  C.  S.  ship  Alabama,  and  obey  such  orders  as  he  may  give  you.  The  rights 


of  neutrals  must  be  strictly  regarded.  The  importance  of  establishing  and 
maintaining  a  wholesome  moral  discipline  is  enjoined  upon  yourself  and  your 
officers. 

Should  you  seek  neutral  ports  for  supplies,  or  otherwise,  you  will  be  careful 
to  observe  the  usual  naval  courtesies  and  customs  towards  those  in  authority  ; 
and  upon  all  proper  occasions  you  will  seek  to  place  the  character  of  the  contest 
in  which  we  are  engaged,  and  the  principles  involved,  in  their  proper  light. 

Should  you  at  any  time  hesitate  as  to  your  course  as  a  Confederate  cruiser, 
your  judgment  may  be  governed  by  the  consideration  that  you  are  to  do  the 
enemy,  in  accordance  with  the  rules  of  civilized  war,  the  greatest  harm  in  the 
shortest  time  ;  and  you  will  enforce  upon  your  officers  and  men  the  performance 
of  their  duty  in  that  spirit  of  humanity  which  ever  distinguishes  an  American 
soldier. 

You  will  endeavor  to  strike  a  blow  at  the  California  trade  and  whalemen  in 
the  Pacific  ;  and  should  you  capture  bullion,  it  is  suggested  that,  if  no  better 
means  of  shipping  it  to  Europe  offers,  you  place  it  in  the  hands  of  a  British 
merchant  of  established  character,  at  Yalparaiso.  A  French  man-of-war  might 
receive  it  on  freight  for  France. 

At  your  request  Acting  Master  F.  M.  Harris  is  ordered  to  report  to  you 
for  duty  in  this  enterprise. 

I  am  respectfully,  your  obedient  servant, 

S.  E.  MALLORY, 

Secretary  of  the  Navy. 

P.  S. — You  will  ship  your  men  regularly  in  the  service  of  the  Navy,  in  the 
usual  manner,  and  are  authorized  to  make  such  acting  appointments  of  officers 
as  your  ship  may  require,  reporting  their  names,  and  in  all  cases  the  evidences 
of  their  fitness  and  character  to  the  department. 

S.  K.  MALLORY, 

Secretary  of  the  Navy. 

Also,  to  which  were  appended  the  names  of  all  the 
defendants,  the  following 

OATH  TO  THE  CONFEDERATE  GOVERNMENT. 

I  do  solemnly  swear,  before  Almighty  God,  and  by  all  that  I  hold  dear  on 
earth,  that  I  will  bear  true  faith  in  the  matter  about  to  be  laid  before  me,  con- 


cerning  injury  to  be  inflicted  upon  the  merchant  marine  of  the  United  States, 
and  acting  under  orders  of  Acting  Master  T.  E.  Hogg,  of  the  Confederate  States 
Navy,  that  wherever  I  may  be  sent  strict  secrecy  will  be  observed,  and  my  ac- 
tions so  governed  as  to  be  free  from  suspicion.  Should  I  wilfully,  at  any  time 
or  place,  seek  to  damage  the  secrecy  of  the  enterprize,  or  divulge  anything  that 
would  damage  the  person  or  liberty  of  any  one  engaged  in  the  enterprize,  I 
hereby  adjudge  myself  guilty  of  a  flagrant  breach  of  trust,  and  a  violator  of  my 
oath,  and  as  such  justly  merit  any  punishment  that  my  associates  in  this  matter 
may  adjudge.  This  I  solemnly  swear,  so  help  me  God. 

ARGUMENT. 
MAY  IT  PLEASE  THE  COMMISSION  — 

The  undersigned,  of  counsel  for  the  prisoners,  upon 
entering  into  the  consideration  of  the  defence  which 
they  propose  to  offer  in  behalf  of  their  clients,  feel 
bound  to  disembarrass  themselves  of  some  incidents 
which  would  otherwise  restrain  the  proper  freedom 
which  belongs  of  right  to  their  present  position.  They 
felt  themselves  bound,  on  Tuesday  last,  to  present  to 
the  Commission  a  paper  which  the  Commission  declined 
to  receive,  or  to  enter  upon  the  record,  and  returned 
it  to  counsel  with,  as  we  understood,  an  implied  re- 
buke. This  paper  was  prepared  and  presented  with  all 
possible  respect  to  the  Commission,  both  collectively 
and  to  its  members  individually,  and  as  a  part  of  the 
legitimate  defence  of  the  prisoners,  which  these  counsel 
felt  themselves  bound  to  undertake,  and  to  prosecute 
to  the  best  of  their  ability  ;  for  although  the  prisoners 
have  been  detained  upon  suspicion  of  alleged  crimes 
which  are  revolting  to  the  patriotism  of  all  loyal  men, 
and  are  also  abhorrent  to  human  nature,  and  have 


themselves,  down  to  this  very  day,  been  publicly  stig- 
matized as  "  Pirates,"  the  undersigned  would  have  felt 
themselves  false  to  their  oaths  as  lawyers,  false  to  their 
profession,  and  false  to  the  cause  of  humanity,  if,  being 
appealed  to  as  lawyers,  they  had  not  consented  to  ap- 
pear for  these  prisoners,  and  to  conduct  that  defence 
which  the  prisoners  had  a  right  to  make,  as  well  as  it 
could  be  conducted.  The  undersigned  did  not  need  the 
example  of  Denman,  or  of  Brougham,  to  enforce  upon 
them  the  ethics,  not  merely  of  the  bar,  but  of  public 
law  and  of  humanity,  which  are  thus  expressed  in  the 
vigorous  language  of  Lord  Erskine,  defining  the  rights 
of  all  accused  persons,  as  well  as  those  of  Englishmen  : 
"I  will  forever,  at  all  hazards,  assert  the  dignity, 
"  independence,  and  integrity  of  the  English  Bar,  with- 
"  out  which  impartial  justice,  the  most  valuable  part 
"of  the  English  Constitution,  can  have  no  existence. 
"  From  the  moment  that  any  advocate  can  be  permitted 
"to  say  that  he  will,  or  will  not,  stand  between  the 
"  Crown  and  the  subject  arraigned  in  the  Court  where 
"he  daily  sits  to  practice,  from  that  moment  the  liber- 
tk  ties  of  England  are  at  an  end.  If  the  advocate  refuse 
"  to  defend  from  what  he  may  think  of  the  charge,  or  of 
"the  defense,  he  assumes  the  character  of  the  Judge  ; 
"  nay,  he  assumes  it  before  the  hour  of  judgment ;  and, 
"in  proportion  to  his  rank  and  reputation,  puts  the 
"heavy  influence  of  perhaps  a  mistaken  opinion  into 
"the  scale  against  the  accused,  in  whose  favor  the  be- 
"nevolent  principle  of  the  English  Law  makes  all  pre- 


6 

' '  sumptions,  and  which  commands  the  very  Judge  to 
"  be  his  counsel." 

Acting  under  the  sense  of  these  high  responsibili- 
ties, considering  themselves  infamous,  if,  being  appealed 
to,  they  did  not  undertake  the  defence  in  such  a  man- 
ner as  to  secure  to  their  clients  every  possible  advant- 
age which  the  forms  of  procedure  guaranteed  to  them, 
the  undersigned  have  given  to  the  defence  the  best  of 
their  judgment,  and,  when  they  doubted,  have  taken 
that  course  which  would  most  effectually  secure  to  the 
prisoners  the  benefit  of  that  doubt.  Hence  arose  the 
preparation  and  submission  of  the  paper  presented  on 
Tuesday,  which  the  Commission  declined  to  receive. 
If  that  paper  has  any  significance,  as  one  of  the  docu- 
ments in  this  proceeding,  it  will  receive  its  proper  con- 
sideration. If  it  has  no  significance,  it  will  receive  no 
weight.  In  either  event  it  was  prepared  and  submitted 
with  the  greatest  regard  for  the  interest  of  the  prison- 
ers, and  with  an  equal  respect  for  the  Commission. 

In  proceeding  to  the  discussion  of  the  charge  made 
against  the  prisoners,  the  undersigned  respectfully  sub- 
mit that  there  is  no  charge  of  any  offence  alleged  to 
have  been  committed  by  any  of  them.  In  other  words, 
that  the  specification  does  not  sustain  the  charge  ;  and 
before  proceeding  further  they  wish  to  call  the  atten- 
tion of  the  Commission  to  the  fact  that,  in  all  the  cita- 
tions made  by  them,  the  italics  are  theirs,  and  are 
introduced  for  the  sake  of  emphasis. 

The  following  are  the  charge  and  specification  on 
which  the  trial  is  based. 


"CHARGE. 

•'Violation  of  the  laws  and  usage  of  civilized  war. 

"SPECIFICATION. 

"  In  this,  that  they,  the  said  T.  E.  Hogg,  E.  A.  Swain, 
J.  S.  Hiddle,  W.  L.  Black,  T.  J.  Grady,  R.  B.  Lyon, 
and  Joseph  Higgins,  being  commissioned,  enlisted,  en- 
rolled, or  engaged  by  the  Government  of  the  so-called 
Confederate  States,  did,  on  or  about  the  tenth  day  of 
November,  1864,  come  on  board  of  the  U.  S.  merchant 
ship  Salvador,  then  lying  in  the  friendly  port  of  Pana- 
ma, New  Granada,  in  the  guise  of  peaceful  passengers, 
without  any  visible  mark  or  insignia  indicating  their 
true  character  as  enemies,  and  did  so  enter  on  board  of 
said  steamer,  secretly  armed,  and  provided  with  mana- 
cles, with  the  intention,  purpose,  and  object  of  treach- 
erously rising  on  the  Master,  crew,  and  unsuspecting 
passengers  of  said  steamer,  when  she  had  reached  the 
high  seas,  and  of  capturing  her  and  the  property 
aboard,  and  of  converting  her  into  a  cruiser  to  prey  on 
the  commerce  of  the  citizens  of  the  United  States.'7 

It  will  be  observed  that  the  prisoners  are  not 
charged  with  any  offence  committed  by  them  as  citizens 
of  the  United  8tates.  There  is  neither  allegation  nor 
proof  that  they  are  such  citizens  ;  but,  on  the  contrary, 
both  charge  and  proofs  give  them  the  status  of  bellig- 
erents in  the  service  of  the  ' '  Go vernment "  of  the  so- 
called  Confederate  States.  The  charge  is  simply  a 
"  violation  of  the  laws  and  usage  of  civilized  war."  We 


8 

submit  that  this  charge  is  not  sustained,  even  if  the 
specification  is  proved. 

In  discussing  this  point,  it  is  to  be  remarked,  that 
the  character  of  the  punishment  annexed  to  an  act  of 
war  has  no  force  whatever  in  determining  whether  the 
act  itself  is  or  is  not  a  ' '  violation  of  the  laws  and  usage 
"  of  civilized  war."  For  example,  the  office  of  a  spy  is 
an  infamous  one,  and  is  punished  by  a  speedy,  dis- 
graceful, and  violent  death  ;  and,  for  this  reason,  a 
commanding  officer  has  no  right  to  compel  a  soldier  to 
become  a  spy.  But  a  person  who  performs  this  office 
of  spy  does  not  "  violate  the  laws  and  usage  of  civilized 
11  war.'7  Says  Gen.  Halleck,  in  his  Treatise  on  Interna- 
tional Law,  which  is  accepted  by  the  Supreme  Court  of 
the  United  States  as  the  most  serviceable  treatise  on 
this  topic  :  "  The  employment  of  spies  is  considered  a 
"kind  of  clandestine  practice,  a  deceit  in  war,  allowable 
"by  its  rules."  Halleck,  page  406,  section  26.  This 
extreme  case  illustrates  completely  our  proposition. 
Therefore,  neither  the  infamy  attached  to  an  act  of  war, 
nor  the  nature  of  the  punishment  awarded  to  it,  can 
assist  us  in  determining  whether  the  act  itself  is  or  is 
not  a  "violation  of  the  laws  and  usage  of  civilized 


war." 


The  offence  charged  is  not  piracy,  for  piracy  is  rob- 
bery, or  a  forcible  depredation  on  the  high  seas,  without 
lawful  authority,  done  with  the  intent  of  robbery,  in 
the  spirit  and  intention  of  universal  hostility.  Bou- 
vier's  Law  Die.,  title  "Piracy;"  United  States  vs. 
Klintock,  5  Wheaton,  153,  163  ;  United  States  vs. 


Palmer,  3  Wheaton,  631  ;  United  States  vs.  Jones,  3 
Washington's  Circuit  Court  Reports,  209. 

This  is  also  the  definition  of  piracy  by  the  Law 
of  Nations.  1  Kent's  Commentaries,  183.  So  that, 
although  the  prisoners  have  been  popularly  called 
"pirates,"  and  some  of  the  witnesses  have  even  given 
them  that  name,  still  there  is  not  a  single  act  charged 
against  them  which  partakes  of  a  piratical  character. 
The  very  charge  itself  distinguishes  the  Port  of  Panama 
as  not  being  a  part  of  the  high  seas,  as  it  alleges  that 
they  did  not  intend  to  consummate  their  crime  until 
they  had  left  the  Port  of  Panama  and  "  had  reached  the 
high  seas"  and  so  it  must  be  taken  for  granted  that  the 
Port  of  Panama  is  not  a  part  of  the  high  seas. 

The  letters  of  the  Consuls  at  Panama  and  Havana, 
addressed  to  the  Department  of  State,  touching  the 
intentions  of  the  prisoners,  frequently  speaks  of  them  as 


PIRATES." 


This  correspondence  was  vainly  objected  to  by  the 
prisoners  as  not  binding  on  them,  being  communications 
between  third  persons,  to  which  the  prisoners  were  not 
parties,  and  for  the  contents  of  which  no  just  man 
ought  to  hold  them  responsible.  And  the  prisoners 
respectfully  suggest  that  as  the  object  of  this  trial  is  at 
last  to  get  at  the  truth,  meaning  the  truth  as  ascer- 
tained by  the  civil  law,  by  moral  law,  and  by  martial 
law  combined,  and  to  enforce  its  consequences,  be  they 
what  they  may,  the  purposes  of  the  investigation  would 
not  be  promoted  by  the  loose  and  indiscriminate  use  of 
opprobrious  epithets. 


10 

The  board,  however,  having  permitted  these  letters 
to  be  read  in  evidence,  the  prisoners  will  content  them- 
selves with  answering  the  denunciations  of  their  being 
guilty  of  the  diabolical  crime  of  piracy,  and  with  com- 
menting upon  the  looseness  and  carelessness  with  which 
that  odious  term  is  frequently  employed,  by  quoting 
the  language  of  Mr.  Webster,  the  then  Secretary  of 
State,  addressed  to  Mr.  Fox,  the  British  Ambassador, 
in  McLeod's  case  in  the  matter  of  the  Canadian  rebell- 
ion in  1837  : 

"Her  Majesty's  Government  are  pleased  also  to 
"  speak  of  those  American  citizens  who  took  part  with 
"  persons  in  Canada,  engaged  in  an  insurrection  against 
"  the  British  Government,  as  'American  pirates/  The 
"undersigned  does  not  admit  the  propriety  or  justice 
"  of  this  designation.  If  citizens  of  the  United  States 
11  fitted  out.  or  were  engaged  in  fitting  out,  a  military 
"  expedition  from  the  United  States,  intended  to  act 
' '  against  the  British  Government  in  Canada,  they  were 
"  clearly  violating  the  laws  of  their  own  country,  and 
"  exposing  themselves  to  the  just  consequences  which 
11  might  be  inflicted  on  them  if  taken  within  the  British 
"  dominions.  But,  notwithstanding  this,  they  were 
11  certainly  not  pirates,  nor  does  the  undersigned  think 
"  that  it  can  advance  the  purpose  of  fair  and  friendly 
"  discussion,  or  hasten  the  accommodation  of  national 
"  difficulties,  so  to  denominate  them.  Their  offense, 
11  whatever  it  was,  had  no  analogy  to  cases  of  piracy. 
"  Supposing  all  that  is  alleged  against  them  were  true,  they 
1 '  were  taking  a  part  in  what  they  regarded  as  a  civil  war. 


11 

"  and  they  were  taking  a  part  on  the  side  of  the  rebels. 
11  Surely  England  herself  has  not  regarded  persons  thus 
11  engaged  as  deserving  the  appellation  which  Her  Maj- 
"  esty's  Government  bestows  on  these  citizens  of  the 
"United  States." 

11  But  whether  the  revolt  be  recent  or  long-contin- 
"  ued,  they  who  join  those  concerned  in  it,  whatever 
"  may  be  their  offense  against  their  own  country ,  or 
"  however  they  may  be  treated,  if  taken  with  arms  in 
"  their  hands  in  the  territory  of  the  government  against 
"which  the  standard  of  revolt  is  raised,  cannot  be 
"  denominated  pirates  without  departing  from  all  ordi- 
"  nary  use  of  language  in  the  definition  of  offenses.  A 
"  cause  which  has  so  foul  an  origin  as  piracy  can  not, 
' '  in  its  progress  or  by  its  success,  obtain  a  claim  to  any 
"  degree  of  respectability  or  tolerance  among  nations  ; 
"  and  civil  wars,  therefore,  are  not  understood  to  have 
"  such  a  commencement."  Webster's  Diplomatic  and 
Official  Papers,  pp.  128,  129. 

What,  then,  is  the  character  of  the  act  charged 
against  these  prisoners,  as  recognized  by  the  laws  of 
war  ?  We  reply,  it  was  a  stratagem  in  war,  perfectly 
allowable  under  the  laws  and  usage  of  civilized  war.  Says 
General  Halleck,  in  his  Treatise  on  International  Law, 
page  402,  Sec.  23  :"  Stratagems  in  war  are  snares  laid 
"  for  an  enemy,  or  deceptions  practiced  on  him  without 
"  perfidy,  and  consistent  with  good  faith.  They  are 
"  not  only  allowable,  but  have  often  constituted  a  great 
"  share  of  the  glory  of  the  most  celebrated  command- 


12 

"  ers.  'Since  humanity  obliges  us,'  says  Yattel,  'to 
11  prefer  the  gentlest  methods  in  the  prosecution  of  our 
"  rights,  if,  by  a  stratagem,  by  a  feint  devoid  of  perfidy, 
"  we  can  make  ourselves  masters  of  a  strong  place,  sur- 
"  prise  the  enemy,  and  overcome  him,  it  is  much  better, 
"  and  is  really  more  commendable  to  succeed  in  this 
' '  way  than  by  a  bloody  seige  or  the  carnage  of  a  bat- 
tle. 

11  Thus,  feints  and  pretended  attacks  are  frequently 
"resorted  to,  and  men  or  ships  are  sometimes  so  dis- 
11  guised  as  to  deceive  the  enemy  as  to  their  real  character, 
11  and,  by  this  means,  enter  a  place  or  obtain  a  position 
il  advantageous  to  their  plan  of  attack  or  of  battle.7  But 
"the  use  of  stratagems  is  limited  by  the  rights  of  hu- 
' '  manity  and  the  established  usages  of  war.  Even  if 
"  devoid  of  perfidy,  and  consistent  with  the  faith  due 
u  the  enemy,  they  must  not  violate  commercial  usage, 
1 '  or  contravene  the  stipulations  of  particular  treaties. 
"  Yattel  mentions  the  case  of  an  English  frigate  which, 
"  in  the  war  of  1756,  is  said  to  have  appeared  off  Cal- 
"  ais,  and  made  signals  of  distress,  with  a  view  of  de- 
"  coying  out  some  vessel,  and  actually  seized  a  boat 
"and  some  sailors  who  generously  came  to  her  assist- 
"  ance.  If  the  fact  be  true,  that  unworthy  stratagem 
"  deserves  a  severe  punishment.  It  tends  to  dampen  a 
"benevolent  charity,  which  should  be  held  sacred  in 
"the  eyes  of  mankind,  and  which  is  so  laudable  even 
"between  enemies.  Moreover,  making  signals  of  dis- 
"  tress  is  asking  for  assistance,  and  by  that  very  action 
"promising  perfect  security  to  those  who  give  the 


13 

"  friendly  succor.  Therefore  the  action  attributed  to 
"  that  frigate  implies  an  odious  perfidy.  Ortolan  refers 
' '  to  the  conduct  of  an  English  frigate  and  two  vessels 
"at  Barcelona,  in  1800,  as  of  the  same  character  as 
"that  of  the  English  frigate  off  Calais,  described  as 
"  above  by  Yattel.  On  the  fourth  of  September,  1800, 
11  the  English  took  forcible  possession  of  a  Swedish  ves- 
"  sel,  then  neutral,  near  Barcelona,  put  a  large  number 
"of  English  soldiers  and  marines  on  board,  and,  enter- 
ing the  harbor  in  the  night,  under  this  neutral  flag, 
"and  in  a  neutral  vessel,  surprised  and  captured  two 
"  Spanish  frigates  which  were  lying  at  anchor.  Ortolan 
"  denounces  this  as  an  act  of  perfidy,  and  as  not  being 
"  a  stratagem  allowable  by  the  usages  of  war.  This  act 
"  may  be  viewed  in  different  lights.  So  far  as  the  sur- 
"  prise  of  the  Spaniards  is  concerned  it  was  a  legitimate 
1 '  stratagem.  It  was  their  duty  to  be  prepared  for  such  an 
"attack,  and  they  were  properly  punished  for  their  neglect 
1 1  to  take  the,  proper  and  ordinary  precautions  to  prevent  it. 
"  So  far  as  the  seizure  and  the  use  of  the  Swedish  ves- 
"sel,  and  the  treatment  received  by  its  Captain  and 
"crew  at  the  hands  of  the  English,  are  concerned,  it 
"was  a  gross  violation  of  neutral  rights,  which  would 
"have  justified  Sweden  in  declaring  war,  on  satisfaction 
"  being  refused.  As  between  Spain  and  Sweden  it  was 
"  a  gross  neglect  of  neutral  duty,  on  the  part  of  the  lat- 
"ter,  in  not  requiring  England  to  restore  the  captures 
"  thus  unlawfully  made  under  the  Swedish  flag.  With 
"  respect  to  the  ACTUAL  ATTACK  made  ly  the  English  under 
"  a  false  flag,  it  was  a  direct  violation  of  their  own  mar- 


14 

"  itime  laws,  and  the  established  usages  of  nations,  as 
"  will  be  shown  in  the  next  paragraph." 

We  have  cited  this  whole  section  because  it  not  only 
gives  the  true  rule,  but  also  because  its  illustrations 
embrace  the  very  case  now  before  the  Commission.  It 
is  allowable  to  go  on  board  an  enemy's  ship  in  the  guise 
of  passengers,  with  the  intent  of  rising  upon  the  officers 
and  ship,  and  capturing  them  as  an  act  of  war.  And 
this  secresy  and  disguise  may  be  maintained  until  the 
very  moment  of  the  actual  attack,  and  not  until  then  is 
it  necessary  to  disclose  the  flag  under  which  the  act  is 
committed.  Here  the  prisoners  had  what  the  charge 
itself  denominates  the  "  confederate  "  flag  in  their  pos- 
session, and  it  is  to  be  presumed  that  they  intended  to 
raise  it  when  they  should  rise  upon  the  officers  and 
crew. 

At  any  rate  they  committed  no  offence,  for  they  made 
no  attack,  and  until  that  act  it  was  not  necessary  to  show 
their  flag.  Section  23,  page  401,  of  the  same  work  of 
General  Halleck's  fully  defines  what  is  meant  by  perfidy 
and  good  faith : 

"  War  makes  men  public  enemies,  but  it  leaves  in 
"force  all  duties  which  are  not  necessarily  suspended 
' '  by  the  new  position  in  which  men  are  placed  toward 
"each  other.  Good  faith  is,  therefore,  as  essential  in 
"  war  as  in  peace,  for  without  it  hostilities  could  not  be 
"terminated  with  any  degree  of  safety,  short  of  the 
"total  destruction  of  one  of  the  contending  parties. 
"  This  being  admitted  as  a  general  principle,  the  ques- 
tion arises,  how  far  we  may  deceive  an  enemy,  and 


15 

"what  stratagems  are  allowable  in  war?  Whenever 
"  we  have  expressly  or  tacitly  engaged  to  speak  truth 
"  to  an  enemy,  it  would  be  perfidy  in  us  to  deceive  his 
1 '  confidence  in  our  sincerity.  But  if  the  occasion  im- 
"  poses  upon  us  no  moral  obligation  to  disclose  to  him 
"the  truth,  we  are  perfectly  justifiable  in  leading  him 
' '  into  error,  either  by  words  or  actions,  feints,  and 
11  deceptions  of  this  kind,  are  always  allowable  in  war.  It 
"is  the  breach  of  good  faith,  express  or  implied,  which 
' '  constitutes  perfidy,  and  gives  to  such  acts  the  charac- 
ter of  lies."  Halleck  on  Int.  Law,  pages  401,  402, 
section  22. 

Perfidy  or  treachery,  then,  consists  in  committing 
an  act  of  war  which  we  have  either  tacitly  or  expressly 
agreed  not  to  commit.  It  is  perfidy  or  treachery  to 
violate  a  safe  conduct.  It  is  perfidy  or  treachery  to 
fire  at  a  flag  of  truce,  or  to  fire  from  under  it.  It  is 
perfidy  or  treachery  to  make  an  assault  without  disclos- 
ing the  flag  under  whose  authority  it  is  made.  But  it 
is  not  perfidy  or  treachery  to  go  on  board  a  ship  in  the 
guise  of  peaceful  passengers,  with  the  intention  of  ris- 
ing upon  and  capturing  the  crew  and  ship  as  an  act  of 
war.  For  the  belligerents  in  this  case  made  no  pledge, 
bound  themselves  by  no  flag  of  truce,  held  out  no  flag, 
false  or  true,  and  in  their  capacity  of  belligerents  were 
under  no  moral  obligation  making  it  possible  for  them 
to  become  perfidious.  To  quote  the  same  author : 

"  So  far  as  the  surprise  of  the  Spaniards  is  concerned, 
1  i  it  was  a  legitimate  stratagem.  It  was  their  duty  to  be 
"prepared  for  such  an  attack,  and  they  were  properly  pun- 


16 

1 '  ished  for  their  neglect  to  take  the  proper  precautions  to 
"prevent  it"  Halleck's  International  Law,  page  403, 
section  23. 

Both  of  our  propositions  are  strongly  confirmed  by 
General  Order,  No.  101,  of  April  24,  1863,  which  reads 
as  follows  : 

"  101.  While  deception  in  war  is  admitted  as  a 
"  just  and  necessary  means  of  hostility,  and  is  consistent 
"  with  honorable  warfare,  the  common  law  of  war 
"allows  even  capital  punishment  for  clandestine  or 
"  treacherous  attempts  to  injure  an  enemy,  because  they 
"are  so  dangerous,  and  it  is  so  difficult  to  guard 
"  against  them." 

And  No.  19,  of  the  same  General  Orders,  avows 
that  "surprise  may  be  a  necessity." 

It  follows,  then,  from  the  very  orders  of  war : 

First.  That  deception  in  warfare  is  a  just  and  nec- 
essary means  of  hostility,  and  is  consistent  with  honor- 
able warfare. 

Secondly.  That  it  is  only  treacherous  attempts  to 
injure  an  enemy  which  will  be  visited  with  capital  pun- 
ishment ;  and  what  constitutes  such  treachery  we  have 
just  demonstrated. 

Thirdly.  That  the  nature  of  the  punishment  award- 
ed to  an  act  of  war  has  no  force  or  effect  whatever  in 
determining  the  character  of  that  act,  in  reference  to 
its  being  a  "violation  of  the  laws  and  usage  of  civilized 


war." 


These  General  Orders  are  therefore  consistent  with 
the  laws  and  usage  of  civilized  war,"  as  laid  down  by 


our  own  writers,  and  generally  practiced  before  the  re- 
cent rebellion.  And,  if  it  were  otherwise,  we  need  not 
say  that  no  State  can ,  by  its  own  sole  act,  alter  '  *  the  laws 
and  usage  of  civilized  war  "  in  any  respect.  In  effect, 
these  General  Orders  do  not  purport  to  be  anything 
more  than  a  codification  of  pre'existing  rules,  nor  could 
they,  in  any  event,  obtain  any  higher  character. 

Therefore  it  follows  that,  even  if  the  prisoners  have 
committed  an  offence,  it  is  not  the  offence  with  which 
they  are  charged.  They  have  not  committed  a  ' '  viola- 
tion of  the  laws  and  usage  of  civilized  war." 

The  foregoing  assumes  that  the  prisoners  did  really 
commit  an  overt  act  of  war.  The  going  on  board  a 
merchant  vessel,  not  on  the  high  seas,  and  not  within 
the  jurisdiction  of  the  United  States,  with  the  intent 
mentioned  in  the  specification  is  not  a  warlike  act.  The 
act  might  be  punishable  by  the  laws  of  New  Granada, 
but  it  is  no  infraction  of  the  laws  of  war.  For  there 
could  be  no  war  between  the  belligerents  within  the 
jurisdiction  of  a  foreign  power.  If  persons  in  the  ser- 
vice of  the  enemies  of  the  United  States  should  go  on 
board  a  vessel  in  a  Chinese  harbor,  with  the  intent  of 
taking  her  either  there,  or  beyond  a  marine  league  from 
the  shore,  that  would  constitute  no  offence  against  the 
laws  of  nations  or  against  any  law  of  the  United  States. 
The  most  that  can  be  said  is,  that  the  prisoners  har- 
bored the  alleged  intent,  in  going  on  board.  But  that 
intent  became  extinct  before  they  reached  the  ocean. 
They  did  not  go  to  sea  voluntarily.  One  of  the  belliger- 


18 

ents  put  an  end  to  the  expedition  in  a  place  in  which  no 
war  between  them  could  exist. 

The  prisoners  were  captives,  and  a  captive  cannot 
hope  to  be  a  conqueror.  All  hope  of  continuing  the 
enterprize  must  have  been  totally  extinguished  when 
the  prisoners  became  captives  in  the  Bay  of  Panama. 
Therefore  the  prisoners  were  not  on  the  high  seas  with 
any  hostile  intent  touching  either  the  Salvador  or  any 
other  vessel.  The  prisoners  did  not  embark  on  the 
Salvador  intending  then  and  there  to  take  her,  nor  are 
they  charged  with  having  done  so.  On  the  contrary, 
they  intended  not  to  capture  her  within  the  harbor,  but 
go  with  her  under  the  directions  of  her  commander, 
outside  the  port,  and  this  in  the  most  peaceful  manner. 
The  officers  of  the  Lancaster  seem  to  have  understood 
this,  for  they  had  a  force  sufficient  to  capture  the  pris- 
oners in  the  streets  of  Panama,  and  yet  no  attempt  to 
capture  them  there  was  made.  The  right,  however,  to 
make  such  capture  existed  as  completely  in  the  city  as 
on  board  the  ship,  inasmuch  as  it  existed  in  neither 
place.  It  is  idle  to  pretend  that  the  prisoners  were  not 
captives  on  board  the  Salvador.  Their  baggage  was 
taken  from  them  instanter.  All  their  arms  and  ammu- 
nitions of  war  were  among  their  baggage.  The  expe- 
dition was  really  to  commence  when  the  Salvador  should 
arrive  outside.  Unarmed,  and  at  the  mercy  of  sur- 
rounding bayonets,  what  madness  for  them  to  think  of 
commencing  the  expedition !  They  must  have  given  it 
up.  They  surrendered  their  intention.  It  was  actually 


19 

driven  out  of  the  minds  of  each  and  all  of  them  before 
they  had  an  opportunity  to  do  any  body  any  harm,  and 
long  before  the  happening  of  the  event  that  was  to 
precede  their  doing  an  act  of  war,  viz. :  their  arrival  on 
the  high  seas.  The  expedition  was  abandoned.  The 
reasons  for  its  abandonment  are  wholly  immaterial.  If 
the  officers  of  the  Lancaster  had  given  them  permission 
to  go  ashore  from  the  Salvador,  they  would  not  be  here 
in  irons  to-day.  They  became  peaceful,  in  a  foreign 
country,  forcibly  peaceful,  if  it  must  be  said,  and  in  a 
place  in  which,  for  offences,  intended  or  committed,  no 
other  country  can  administer  any  description  of  pun- 
ishment. Their  intention  died  in  the  Bay  of  Panama, 
where  the  United  States  has  no  jurisdiction,  and  no 
similar  intention  has  been,  or  is  likely  now  again  to  be 
justly  imputed  to  them.  A  bad  intent  is  not  punisha- 
ble as  a  crime.  The  intent  must  be  accompanied  by 
some  overt  act  appropriate  to  its  accomplishment,  and 
both  must  exist  within  the  jurisdiction  of  the  authority 
that  proposes  to  punish.  If  it  be  said  that  the  going  on 
board  the  Salvador  was  such  an  act,  the  answer  is,  that 
if  the  offence  had  thus  become  complete,  it  was  com- 
mitted where  the  Government  of  the  United  States  has 

no  jurisdiction.  BANCROFT  USHART 

If  the  prisoners  had  gone  on  board  a  vessel  in  one 
of  the  ports  of  the  United  States  with  the  intent  men- 
tioned, and  had  there,  or  within  the  seas  of  the  United 
States,  committed  any  overt  act  in  the  furtherance  of 
that  intent,  they  might  (if  not  considered  belligerents) 


20 

have  possibly  been  held  under  the  Act  of  Congress  of 
April  30th,  1790,  enlarging  the  definition  of  piracy,  as 
understood  in  the  laws  of  nations.  See  United  States 
Statutes  at  Large,  Yol.  I,  page  113,  §  8.  But  that  Act 
of  Congress  enlarges  the  definition  of  piracy  only  as  a 
municipal  offence  within  the  jurisdiction  of  the  United 
States,  and  does  not  affect  the  definition  or  crime  of 
piracy  under  the  law  of  nations,  and  therefore  has  no 
effect  upon  the  "laws  of  usage  or  civilized  war."  See  In 
re  Turnan,  Queen's  Bench,  May,  1863,  26  Law  Re- 
porter, 499,  etc.  But  that  supposed  case  is  not  the  case 
actually  on  trial.  Here  is  an  attributed  intention  not 
carried  into  actual  accomplishment,  and  therefore  des- 
titute of  the  overt  act  by  which  a  mere  intention  ripens 
into  a  crime.  But  a  bare  intention  to  commit  an 
offence,  without  any  overt  act  towards  its  commission  7 
is  not  a  crime  or  offence  for  which  the  party  can  be  held 
liable.  Bouvier's  Law  Die.,  title  "  Intention,"  5.  So 
even  where  a  party  has  conceived  the  intention  to  com- 
mit a  crime,  he  has  a  locus  p&nit  entice,  which  literally 
signifies  a  place  of,  or  a  time  for,  repentance,  which,  in 
reference  to  projected  crimes,  is  the  opportunity  of 
abandoning  the  intention  of  committing  a  crime  before 
the  opportunity  for  its  completion.  Bouviers  Law 
Die.,  title  "Locus  Poenitentise."  And,  therefore,  a 
mere  attempt  to  commit  a  crime,  even  if  carried  beyond 
mere  preparation,  but  falling  short  of  execution  of  the 
ultimate  design,  is  not  characterized  with  the  heinous- 
ness  of  the  intended  offence.  A  man  who  buys  poison 


21 

for  the  purpose  of  committing  a  murder,  and  mixes  it 
in  the  food  intended  for  his  victim,  will  or  will  not  be 
guilty  of  an  attempt  to  poison,  from  the  simple  circum- 
stance of  his  taking  back  the  poisoned  food  before  or 
after  the  victim  has  an  opportunity  to  take  it :  for  if, 
immediately  on  putting  it  down,  he  should  take  it  up, 
and,  awakened  to  a  just  consideration  of  the  enormity 
of  the  crime,  should  destroy  it,  this  would  amount  only 
to  preparations  ;  and  certainly,  if,  before  he  placed  the 
poison  on  the  table,  or  before  he  mixed  it  with  the  food, 
he  had  repented  of  his  intention,  there  would  have  been 
no  attempt  to  commit  a  crime.  The  law  gives  this  as  a 
locus p&nitentice.  Bouvier's  Law  Die.,  title  ''Attempt.'7 

Now  the  Law  Civil  and  the  Law  Martial  do  not  dif- 
fer in  their  definitions.  They  differ  only  in  their  modes 
of  procedure.  We  have,  therefore,  cited  definitions 
from  elementary  works  acknowledged  as  authority  by 
both  systems. 

From  these  definitions  alone,  which  enter  into  the 
very  essence  of  crimes,  it  appears  that  a  mere  intent  not 
carried  into  any  overt  act  of  execution  manifested  by  open 
action,  does  not  constitute  the  offence  intended  to  be 
committed.  And  in  this  case  there  was  manifestly  an 
abandonment  of  the  intent  to  proceed  any  further. 
The  locus  pwnitentice  is  allowed  to  qualms  of  conscience 
and  to  prevailing  fears,  only  because  they  interrupt  the 
proceeding  from  intention  to  action.  Why,  then,  should 
it  not  be  allowed  to  that  absolute  interruption  which 
arises  from  detection  and  the  presence  of  a  superior  hos- 


22 

tile  force  ?  If  a  person  were  arrested  outside  of  your 
military  lines,  but  proceeding  towards  them  with  the 
intention  of  entering  them  as  a  spy,  would  you  try,  con- 
vict and  hang  him  for  the  intention  of  entering  your 

lines  as  a  spy  ? 

EDMOKD  L.  GOOLD, 

JOHN  W.  DWINELLE, 

Of  Counsel,  etc. 


/  7  ff  1   0 


r\ 


